Unfortunate: Kickstarter's Overaggressive Reaction To DMCA Notices

from the could-be-handled-much-better dept

Tim K alerts us to an interesting story at Wired concerning how Kickstarter handles DMCA takedown notices. The answer: not well. It seems to take DMCA notices at face value... and then immediately make the project disappear. It does not put up a notice that the project was taken down due to a DMCA notice. It does not alert backers of the project. It does not make it easy for the project owner to alert the backers of the project, or to accelerate the counternotice process. This is unfortunate.

While the story mentions that Kickstarter has disappeared at least 5 projects due to DMCA takedowns, the one it focuses on is a very recent one -- a project by a new design company called Vinted Bags, makers of interesting vintage-style leather goods (the same business my grandfather was in -- though, when he did it, the products weren't "vintage"). Vinted had put up a Kickstarter project that blew past its target, and seemed to get plenty of attention. And then, just hours before it was funded, it disappeared, replaced with a page that says: "Sorry, this project is no longer available."

Projects are not closed or taken down, they remain on site for reference and transparency.

For the same reasons, projects cannot be deleted, even if they were canceled or unsuccessful.

Except, apparently, if someone files a hugely questionable DMCA takedown... The Vinted team provides some troubling background info on its own site. First, it notes that two Vinted designers did an unpaid internship with a bag company, where they worked and learned for a few months, considering the founder of that company to be a mentor. Months later, after that internship had ended, they founded Vinted. They worked on that for a while, and it was only once the Kickstarter project took off and got attention that suddenly the legal threat showed up:

Then we received a letter from a law firm; a cease and desist letter from the mentor with threats to sue. We were very surprised. It consisted accusations of infringement from the mentor. He laid claims to a number of our designs such as our website utilizing a top navigation bar, our photo of the designer operating a sewing machine, etc.

Note that there are no accusations concerning the products themselves. While Vinted doesn't name the guy, the Wired article names Spencer Nikosey, who runs Killspencer. Looking over their products, there doesn't seem to be any copying there. While there are a few similar bags, they are pretty standard and Vinted's are distinguished by their use of leather patches. In terms of website design, there are some similarities, but nothing that should come close to meeting the qualifications to be copyrighted (remember, copyright covers the actual expression, not the idea). Ditto a photo of the designer operating a sewing machine, which is obviously not infringing. Even if the ideas are similar, that's not infringement.

And yet... Kickstarter took the project down. Again, I'm having trouble understanding why it would do so. You might be able to make an argument that if Spencer Nikosey had claimed that the products themselves were infringing, Kickstarter should take it down -- but even then, there should be a clear notification from Kickstarter to its users about what happened, as well as a notice on the site (a la YouTube) highlighting why the project no longer existed.

But, in this case, even that doesn't apply, because there is no infringement in the product. Instead, the concerns appear to be about web design and how the company is presenting itself. But Kickstarter doesn't host Vinted's website. And if there was concern about certain images, at most, Kickstarter should just remove the image in question, rather than the entire project. The whole thing seems quite crazy and a case where Kickstarter both could have and should have stood up for itself, for Vinted and for its users, and told Nikosey "too bad." Instead it pulled the project.

Vinted has filed a counternotice, and Kickstarter passed it on to Nikosey. If Kickstarter is following the DMCA counternotice process, it should put Vinted's project back online on September 27th -- unless Nikosey goes to court and files a lawsuit against Vinted, seeking an injunction barring the return of the campaign. Of course, Kickstarter could also realize that the original takedown appeared questionable and put the campaign back. What's not clear, however, is how that would work. There were just a few hours left in the campaign before the plug was pulled. Would they put it back with a few more hours? A few extra days? Or would they just charge those who bid? Hopefully they can put it back, and didn't just delete the whole thing.

Looking over the details, it's difficult to see this as anything other than yet another in a long line of unfortunate examples of companies or individuals using the DMCA to stifle competition, rather than for any sort of legitimate purpose. That Kickstarter is complicit in this process is unfortunate, because it need not be. There are better ways to handle such situations and it's a shame Kickstarter has chosen not to do so.

The real problem lies in the copyright lawsuits being throw out all will-nilly. Companies like Kickstarter, Google and Zazzle which operate on constantly changing content have to bend over backwards for a group of corporations that use the government as a handpuppet.

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I think that as more companies like Kickstarter follow the rule of the law, it'll get to a point where they have a massive portfolio of ridiculous takedowns and say, "Look, lads - this DMCA is not going to work."

Of course, when that happens I expect the usual trolls to call Kickstarter a pirate haven or something.

"He laid claims to a number of our designs such as our website utilizing a top navigation bar"

OMG, that's DEFINITELY worthy of a few decades of IP protections! No way would have someone thought of putting the navigation bar at the TOP of the page instead of somewhere else like the left or right side of the page!

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"The real problem lies in the copyright lawsuits being throw out all will-nilly."

The real problem is in the one sided penalty structure. It's not Kickstarter's fault, it's the law's fault. If you falsely claim infringement you would be lucky to get a slap on the wrist. If you don't respond promptly to potential infringement you can easily get sued out of business.

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and Mike needs to stop blaming Kickstarter, Google, and others for the failures of our legal system. This is the fault of our legal system and of those who abuse the legal system by falsely submitting takedown notices, not of kcikstarter, Google, and other victims. Kickstarter is not to blame, stop blaming them. Direct your criticism towards our broken legal system and towards those who abuse it.

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The only criticism was that Kickstarter went overboard with their compliance without even sending out a notice to the contributors. He pointed out that they could have easily complied with the DMCA notice without taking the drastic measures that they did.

Yes, the law is to blame, but it wasn't a consumer-friendly move on Kickstarter's part.

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"Of course, Kickstarter could also realize that the original takedown appeared questionable and put the campaign back."

Apply your own stupid logic here Mike: How can they know that it's questionable? Are you asking Kickstarter to suddenly be a judge, to be an omnipitant being that can somehow magically determine the validity of a takedown all by themselves?

Wow. Perhaps they can teach YouTube and Fat Kim about copyright too!

If you are going to try to make a point, try not to make yourself look like an ass while doing it.

Since Kickstarter facilitates funding for projects, collecting money, distributing and taking a fee, doesn't it have a fiduciary duty towards the projects and investors? That should prevent reactionary measures.

Not Infringement Unless A JUDGE Decides It!

If the project owners are not proven guilty in a court of law, Kickstarter's policy could incriminate itself. Policy does not make it legal. It may be their service and their T's & C's agreed to, but is it legal?

I'd be interested to hear what a legal specialist has to say about it.

It involves investor donations and capital. Some of these projects are headed by people that are freelancers and receive a wage and are taxed for the hours put in on the project. Kickstarter is removing projects for infringement **CLAIMS** which have not been considered by any judiciary decision makers.

If the claimant is not willing to put it before a judge, Kickstarter should wait until the process has proved the project owner(s) guilty. In which case, it is a civil or criminal case? If it is a civil case and a judge orders the removal of a project from Kickstarter, only then is Kickstarter required by law to remove the project.

Kickstarter, please wise up. Your entire ideal is based on the opposite of your actions. This is a ham-fisted approach to a basic problem.

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"Metatagging is only done by pirates... and pirate-apologists... and pirate-apologizing librarians... and people with strong information literacy skills... amongst people who use metatagging are pirates and pirate-apo... I'll come in again..."

I know both parties in this case and I did think that Vinted basically replicated almost everything they learned from Killspencer (even how they promoted their products and the feel of the brand, not to mention that they go after the exact same target buyer) and just changed the design a little bit which honestly I did find a bit distasteful; however the whole lawsuit situation I think is really going overboard.

indiegogo

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Leather Manufacturer, Goods Producer, Khawaja Tanneries, KTM

We are specialized in producing excellent varieties in COW & BUFFALO and enjoying 1.5 Million production capacity per month in Square Feet. Khawaja Tanneries is ranked amongst the most modern production units of Pakistan. The Tannery is being run by highly qualified technicians with the latest and most advanced technologies (mainly European), which is regarded the world over. Strict quality control is one of the company’s most important principles.

Through time, our business has gradually broadened towards the various countries world-wide such as China, India, Vietnam, Thailand, Russia, Indonesia, Malaysia, Japan, USA, South Korea, Taiwan, Italy, France, Spain, Poland, South Africa, Germany and many other countries around the world. The company places maximum emphasis on product quality, product innovation with the best processing facilities, and run SAP for inventory & management controls. We also have developed quality standardization and remarkable service level to ensure complete customer satisfaction.